The Untold Drafting History of Buckley v. Valeo

Abstract

Although scholars have explored innumerable aspects of the Supreme Court's landmark opinion in the 1976 campaign finance case of Buckley v. Valeo, 424 U.S. 1 (1976), one area left virtually unexplored is the case's drafting history. This article provides a chronology of the internal deliberations of the Court from the time of the post-argument conference to the issuance of the decision on January 30, 1976. It concludes with some thoughts on what the drafting history tells us about the Court's rejection of the equality rationale for campaign finance regulation.The drafting history reveals the following interesting points about the case:(1) Justice Stewart wrote the crucial portion of the opinion upholding campaign contribution limits but striking down limits on campaign expenditures. Justice Powell wrote the section on campaign finance disclosure, Justice Brennan wrote the section on the public financing provisions for presidential elections, and then-Justice Rehnquist wrote the section on the unconstitutionality of the manner in which the Federal Election Commission was constituted. Chief Justice Burger wrote the introduction to the opinion; (2) Initially, Justices Brennan and Marshall agreed with Justice White that the provision limiting to $1,000 independent expenditures supporting or opposing candidates for federal office was constitutional. These Justices appeared to change their minds out of concern over the law's vagueness, not because of a belief that the First Amendment prohibited limits on campaign expenditures; (3) Footnote 52 of the opinion, which has provided the basis for the rise of soft money and issue advocacy, came late in the drafting process; and (4) The Court seemed well aware the new law, as it interpreted it, would not be very effective and even used this ineffectiveness as a reason to strike down the expenditure limits. But the Court seemed unaware that the late-added footnote 52 would have such an impact on electoral politics.